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Public Procurement Seminar
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  1. Public Procurement Seminar Main Changes arising from • Dir. 2004/18 (public sector) • Dir. 2004/17 (utilities) Yves AllainValletta, 25-26 January 2006

  2. AGENDA WHY TWO NEW DIRECTIVES IN 2004 ? CHANGES WHICH ARE COMMON TO DIR. 2004/18 AND 2004/17 CHANGES WHICH ARE SPECIFIC TO DIR. 2004/18 CHANGES WHICH ARE SPECIFIC TO DIR. 2004/18

  3. WHY TWO NEW DIRECTIVES IN 2004 ? 1961 WORKING PROGRAMME 1971 DIR. 71/305 (WORKS CONTRACTS) 1976 DIR. 76/82 (SUPPLY CONTRACTS) 1989 DIR. 89/665 (REMEDIES / PUBLIC SECTOR) 1990 DIR. 90/531 (UTILITIES / WORKS + SUPPLY) 1992 DIR. 92/13 (REMEDIES / UTILITIES) DIR. 92/50 (SERVICES CONTRACTS) 1993 DIR. 93/36 (SUPPLY), 93/37 (WORKS), 93/38 (UTILITIES) 1997 DIR. 97/52 (GPA / PUBLIC SECTOR) 1998 DIR. 98/4 (GPA / UTILITIES)

  4. WHY TWO NEW DIRECTIVES IN 2004 ? NOVEMBER 1996 : COMMISSION GREEN PAPER : « WHAT RESULT HAS BEEN GOT? » MARCH 1998 : - MORE THAN 300 REPLIES : « WE WOULD LIKE MORE FLEXIBILITY » - SOME INITIAL IDEAS (TO BE DISCUSSED BY THE ADVISORY COMMITTEE FOR PUBLIC PROCUREMENT) MAY 2000 : TWO PROPOSALS OF NEW DIRECTIVES DEC. 2003 : AGREEMENT BETWEEN THE PARLIAMENT, THE COUNCIL AND THE COMMISSION

  5. PROVISIONS WHICH ARE COMMON TO DIR. 2004/18 AND 2004/17 1/ SIMPLIFICATION MEASURES PUBLIC SECTOR : 1 DIRECTIVE INSTEAD OF 4 UTILITIES : 1 DIRECTIVE INSTEAD OF 2 TOTAL NUMBER OF THRESHOLDS REDUCED THRESHOLDS EXPRESSED IN € (BUT TO BE UPDATED EACH TWO YEARS)

  6. PROVISIONS WHICH ARE COMMON TO DIR. 2004/18 AND 2004/17 2/POSSIBILITY TO USE ELECTRONIC MEANS OF COMMUNICATION • ADVANTAGES : REDUCTION OF TIME FOR DATA TRANSMISSION, REDUCTION OF TRANSACTION COSTS • KEY PROBLEM : HOW TO ENSURE NON- DISCRIMINATION AND EQUAL TREATMENT OF ALL THE CANDIDATES ?

  7. HOW TO USE THE ELECTRONIC MEANS OF COMMUNICATION ? 1/ TO TRANSMIT THE CONTRACT NOTICES TO THE OJEU • CONDITIONS : THE MEANS MUST BE GENERALLY AVAILABLE AND INTEROPERABLE WITH THE COMMUNICATION TECHNOLOGY PRODUCTS IN GENERAL USE • ADVANTAGE : POSSIBILITY TO REDUCE THE TIME-LIMITS FOR RECEIPT OF TENDERS AND REQUESTS TO PARTICIPATE

  8. HOW TO USE THE ELECTRONIC MEANS OF COMMUNICATION ? 2/ TO TRANSMIT THE TENDER DOCUMENTATION (AS WELL ANY ADDITIONAL DOCUMENT) • CONDITIONS : UNRESTRICTED AND FULL ACCESS TO THE CONTRACT DOCUMENT FROM THE DATE OF PUBLICATION OF THE NOTICE BY GENERALLY AVAILABLE AND INTEROPERABLE MEANS OF COMMUNICATION (SEE TRANSMISSION OF NOTICES) • ADVANTAGE : POSSIBILITY TO REDUCE THE TIME-LIMIT FOR RECEIPT OF TENDERS

  9. HOW TO USE THE ELECTRONIC MEANS OF COMMUNICATION ? 3/ TO ALLOW ELECTRONIC TRANSMISSION AND RECEIPT OF REQUESTS TO PARTICIPATE AND TENDERS • CONDITIONS : INTEGRITY OF DATA CONFIDENTIALITY OF REQUESTS AND TENDERS, AT LEAST UNTIL THE DEADLINES TO SUBMIT THEM TO MAKE AVAILABLE PIECES OF INFORMATION REGARDING THE SPECIFICATIONS RELATING TO THE ELECTRONIC CONNECTION • ADVANTAGE : POSSIBILITY TO REDUCE THE TIME-LIMITS FOR RECEIPT OF TENDERS

  10. HOW TO USE THE ELECTRONIC MEANS OF COMMUNICATION ? 4/ TO ORGANIZE ELECTRONIC REVERSE AUCTIONS (ERA) • ERA ARE POSSIBLE ONLY IF THE CONTRACT SPECIFICATIONS CAN BE ESTABLISHED WITH PRECISION • ERA MUST BE ANNOUNCED IN THE CONTRACT NOTICE • ERA MUST BE BASED ON FEATURES THAT ARE QUANTIFIABLE AND CAN BE EXPRESSED IN FIGURES OR PERCENTAGES • ANY RELEVANT INFORMATION CONCERNING THE TECHNICAL SPECIFICATIONS FOR CONNECTION AND THE ELECTRONIC AUCTION PROCESS MUST BE AVAILABLE

  11. HOW TO USE THE ELECTRONIC MEANS OF COMMUNICATION ? 5/ TO SET UP A DYNAMIC PURCHASING SYSTEM A COMPLETELY ELECTRONIC PROCESS FOR MAKING COMMONLY USED PURCHASES LIMITED IN DURATION OPEN THROUGHOUT ITS VALIDITY TO ANY ECONOMIC OPERATOR WHICH SATISFIES THE SELECTION CRITERIA AND HAS SUBMITTED AN INDICATIVE TENDER THAT COMPLIES WITH THE SPECIFICATIONS.

  12. HOW TO DEFINE THE TECHNICAL SPECIFICATIONS ? KEY OBJECTIVE OF THE DIRECTIVES : TO ENSURE PROPER APPLICATION OF THE PRINCIPLES OF THE TREATY : FREE MOVEMENT OF GOODS FREE MOVEMENT OF SERVICES NON-DISCRIMINATION EQUALITY OF TREATMENT RISKS : TAILORED MADE SPECIFICATIONS CAN LIMIT COMPETITION OR PREDETERMINE THE CHOICE OF THE SUPPLIER OR CONTRACTOR

  13. HOW TO DEFINE THE TECHNICAL SPECIFICATIONS ? A KEY RULE : EQUAL ACCESS FOR TENDERERS THE TECHNICAL SPECIFICATIONS CAN BE DEFINED BY REFERENCE TO NATIONAL STANDARDS IMPLEMENTING EU STANDARDS OR IN TERMS OF PERFORMANCE OR FUNCTIONAL REQUIREMENTS IF THEY ARE SUFFICIENTLY PRECISE TO DETERMINE THE SUBJECT-MATTER OF THE CONTRACT OR PARTLY BY REFERENCE TO STANDARDS AND PARTLY IN TERMS OF PERFORMANCE OR FUNCTIONAL REQUIREMENTS EACH REFERENCE SHALL BE ACCOMPANIED BY THE WORDS « OR EQUIVALENT »

  14. ENVIRONMENTAL ISSUES ART. 3 OF EC TREATY « …THE ACTIVITIES OF THE COMMUNITY SHALL INCLUDE … A POLICY IN THE SPHERE OF ENVIRONMENT » (+ ART. 174 TO 176) PROBLEM : CAN CONTRACTING AUTHORITIES COMBINE ENVIRONMENTAL REQUIREMENTS WITH PUBLIC PROCUREMENT RULES ? IF SO, HOW ? FOR INSTANCE, CAN THEY BUY « GREEN BUSES » (= LESS POLLUTING) EVEN THEY ARE MORE EXPENSIVE ?

  15. ENVIRONMENTAL ISSUES ART. 23 : POSSIBILITY TO INCLUDE ENVIRONMENTAL CHARACTERISTICS INTO THE TENDER DOCUMENTS ART. 50 : POSSIBILITY TO REQUIRE CERTIFICATES ATTESTING THE COMPLIANCE OF THE ECONOMIC OPERATOR WITH ENVIRONMENTAL MANAGEMENT STANDARDS BY REFERENCE TO EMAS OR EU OR INTERNATIONAL STANDARDS, OR EQUIVALENT CERTIFICATES ART. 53 : POSSIBILITY TO USE ENVIRONMENTAL CHARACTERISTICS AS AWARD CRITERIA

  16. ENVIRONMENTAL ISSUES ENVIRONMENTAL AWARD CRITERIA ARE ALLOWED ONLY IF THOSE CRITERIA • ARE LINKED TO THE SUBJECT-MATTER OF THE CONTRACT • DO NOT CONFER UNRESTRICTED FREEDOM OF CHOICE ON THE CONTRACTING AUTHORITY • ARE EXPRESSLY MENTIONED IN THE CONTRACT NOTICE AND TENDER DOCUMENTS • COMPLY WITH THE FUNDAMENTAL PRINCIPLES OF EU LAW

  17. SOCIAL ISSUES DIFFICULTY TO COMBINE SOCIAL REQUIREMENTS WITH OBJECTIVITY OF PUBLIC PROCUREMENT CONTRACTING AUTHORITIES ARE ALLOWED TO LAY DOWN SPECIAL CONDITIONS RELATING TO THE PERFORMANCE OF A CONTRACT (PERFORMANCE TO BE CHECKED) POSSIBILITY TO RESERVE THE RIGHT TO PARTICIPATE IN AWARD PROCEDURES TO SHELTERED WORKSHOPS WHOSE MORE THAN 50% EMPLOYEES ARE PEOPLE WITH DISABILITIES

  18. PROVISIONS WHICH ARE SPECIFIC TO DIR. 2004/18 • POSSIBILITY TO USE FRAMEWORK AGREEMENTS • POSSIBILITY TO USE CENTRAL PURCHASING BODIES • POSSIBILITY TO USE THE COMPETITIVE DIALOGUE

  19. FRAMEWORK AGREEMENTS AGREEMENT BETWEEN ONE OR MORE CONTRACTING AUTHORITIES AND ONE OR MORE ECONOMIC OPERATORS AIMING AT ESTABLISHING THE TERMS OF CONTRACTS TO BE AWARDED DURING A GIVEN PERIOD, IN PARTICULAR WITH REGARD TO PRICE AND, WHEN APPROPRIATE, THE QUANTITY ENVISAGED

  20. FRAMEWORK AGREEMENTS USE OF FRAMEWORK AGREEMENTS PREVIOUSLY ALLOWED ONLY FOR THE UTILITIES ADVANTAGES : FOR REPETITIVE NEEDS, EVEN FOR SEVERAL CONTRACTING AUTHORITIES, ONE PROCEDURE INSTEAD OF SEVERAL PROCEDURES POSSIBILITY TO BUY PRODUCTS AS THE NEED APPEARS INSTEAD OF BUYING (AND PAYING) TO PAY BIG QUANTITY POSSIBILITY TO GET BETTER PRICES POSSIBILITY TO RE-OPEN COMPETITION IN ORDER TO AWARD ORDERS OR CONTRACTS CONDITION : THE FRAMEWORK AGREEMENT MUST BE AWARDED AFTER OPEN OR RESTRICTED PROCEDURE, OR AFTER NEGOTIATED PROCEDURE ONLY IF IT IS ALLOWED.

  21. FRAMEWORK AGREEMENTS WITH SEVERAL OPERATORS MINIMUM : 3 ECONOMIC OPERATORS IF ALL THE TERMS ARE LAID DOWN IN THE FRAMEWORK AGREEMENT, CONTRACTS MAY BE AWARDED BY APPLICATION OF THESE TERMS WITHOUT REOPENING COMPETITION IF NOT, OBLIGATION FOR EACH CONTRACT TO CONSULT THE ECONOMIC OPERATORS CAPABLE TO PERFORM THE CONTRACT TIME-LIMIT LONG ENOUGH TO ALLOW TENDERS TO BE SUBMITTED CONFIDENTIALITY OF THESE TENDERS UNTIL THE TIME-LIMIT HAS EXPIRED CONTRACT AWARDED TO THE TENDERER WHO HAS SUBMITTED THE BEST TENDER ON THE BASIS OF THE CRITERIA SET OUT IN THE FRAMEWORK AGREEMENT.

  22. CENTRAL PURCHASING BODIES A CENTRAL PURCHASING BODY ACQUIRES SUPPLIES OR SERVICES INTENDED FOR CONTRACTING AUTHORITIES OR AWARDS CONTRACTS OR FRAMEWORK AGREEMENTS TO WHICH CONTRACTING AUTHORITIES REFER. ADVANTAGE : ONE PROCEDURE INSTEAD OF SEVERAL PROCEDURES (HENCE TRANSACTION COSTS REDUCED) COMPETITION AT EU LEVEL INSTEAD OF LOCAL LEVEL (HENCE LARGER CHOICE, BETTER PRICES) DIFFICULTY : THE USE OF CENTRAL PURCHASING BODIES WAS NOT FORBIDDEN BY DIR. 93/36 OR 92/50 BUT IT WAS NECESSARY TO ORGANIZE AN OPEN OR RESTRICTED PROCEDURE IN ORDER TO CHOOSE SUCH A BODY

  23. THE COMPETITIVE DIALOGUE WHY A NEW PROCEDURE ? FOR COMPLEX PROJECTS, THE CONTRACTING AUTHORITY DOES NOT ALWAYS KNOW WHAT THE MARKET CAN OFFER. RESTRICTED PROCEDURE : LEGALLY RIGHT, BUT TOO RIGID. RISKS TO PREVENT INNOVATIVE SOLUTIONS TO BE PROPOSED. NEGOTIATED PROCEDURE : THE CONTRACTING AUTHORITY COULD BE BETTER INFORMED BUT THE PROCEDURE WOULD BE GENERALLY IRREGULAR IN SUCH A CASE, AND NOT TRANSPARENT ENOUGH. THUS, NEED TO CREATE SOMETHING MORE FLEXIBLE THAN THE RESTRICTED PROCEDURE BUT MORE TRANSPARENT THAN THE NEGOTIATED ONE.

  24. WHAT IS THE AIM OF A COMPETITIVE DIALOGUE ? TO IDENTIFY AND DEFINE THE MEANS BEST SUITED SATISFYING THE NEEDS OF THE CONTRACTING AUTHORITY A CONTRACTING AUTHORITY CAN USE THE COMPETITIVE DIALOGUE WHEN IT CANNOT KNOW WHAT THE MARKET CAN OFFER IN THE WAY OF TECHNICAL SOLUTIONS AND/OR FINANCIAL OR LEGAL SOLUTIONS

  25. HOW TO MANAGE A COMPETITIVE DIALOGUE ? 1st STEP : SELECTION OF CANDIDATES (AT LEAST 3) TO PUBLISH A NOTICE IN THE OFFICIAL JOURNAL OF THE EUROPEAN UNION TO DEFINE THE NEEDS AND REQUIREMENTS TO BE MET IN THE NOTICE OR IN A DESCRIPTIVE DOCUMENT TO SELECT CANDIDATES AFTER THEIR SUITABILITY HAS BEEN CHECKED (SEE THE RESTRICTED PROCEDURE)

  26. HOW TO MANAGE A COMPETITIVE DIALOGUE ? 2nd STEP : DIALOGUE WITH THE SELECTED CANDIDATES THE CANDIDATES PRESENT THEIR FIRST PROPOSALS ON THE BASIS OF THE DESCRIPTIVE DOCUMENT DIALOGUE WITH EACH CANDIDATE ON ALL ASPECTS OF ITS PROPOSAL POSSIBILITY TO ORGANIZE SUCCESSIVE STAGES IN ORDER TO REDUCE THE NUMBER OF SOLUTIONS NO INFORMATION ON A TENDER OF A CANDIDATE CAN BE GIVEN TO OTHER CANDIDATES WITHOUT ITS CONSENT (EQUALITY OF TREATMENT)

  27. HOW TO MANAGE A COMPETITIVE DIALOGUE ? 3rd STEP : AWARD OF THE CONTRACT WHEN THE SOLUTION OR SOLUTIONS HAVE BEEN IDENTIFIED, THE PARTICIPANTS ARE INVITED TO SUBMIT THEIR FINAL TENDERS THE CONTRACTING AUTHORITY CHOOSES THE MOST ECONOMICALLY ADVANTAGEOUS TENDER IN ACCORDANCE WITH THE CRITERIA MENTIONED IN THE NOTICE POSSIBILITY OF FINE-TUNING BUT NO SUBSTANTIAL CHANGE OF THE TENDER OR THE NOTICE IS ALLOWED

  28. CHANGES WHICH ARE SPECIFIC TO DIR. 2004/17 SCOPE OF APPLICATION OF DIR. 93/38 CONTRACTS AWARDED BY CONTRACTING AUTHORITIES OR PUBLIC COMPANIES WHICH PURSUE THEIR ACTIVITY IN THE DRINKING WATER, ENERGY, TRANSPORT OR TELECOMMUNICATION SECTORS, OR BY OTHER ENTITIES (=PRIVATE ENTITIES) HAVING ONE OF THESE ACTIVITIES AND OPERATING ON THE BASIS OF SPECIAL OR EXCLUSIVE RIGHTS GRANTED BY A PUBLIC AUTHORITY

  29. CHANGES WHICH ERE SPECIFIC TO DIR. 2004/17 1st CHANGE : EXCLUSION OF THE TELECOMMUNICATION SECTOR ’70 : ONLY ONE OPERATOR IN EACH MEMBER STATE (FRANCE-TELECOM IN FRANCE, BELGACOM IN BELGIUM..) ’90 LIBERALIZATION OF THIS SECTOR : THE MONOPOLIES ARE ABOLISHED. THE OPERATORS ARE IN COMPETITION. AS A RESULT, ALL THEIR DECISIONS ARE TAKEN ON AN ECONOMICAL BASIS. NO REASON TO SUBMIT THEM TO THE PUBLIC PROCUREMENT DIRECTIVES.

  30. CHANGES WHICH ARE SPECIFIC TO DIR. 2004/17 2nd CHANGE : INCLUSION OF THE POSTAL OPERATORS ’70 THE POSTAL OPERATORS ARE GENERALLY STATE AUTHORITIES OR BODIES GOVERNED BY PUBLIC LAW COVERED BY DIR. 92/50, 93/36 AND 93/37. FROM 2000, THEIR ACTIVITIES ARE PROGRESSIVELY SUBMITTED TO COMPETITION AND BECOME COMMERCIAL. AS A RESULT, THESE OPERATORS ARE TO BE SUBMITTED TO DIR. 2004/17 BEFORE 31-12-2008 (DEPENDING ON EACH MEMBER STATE).

  31. CHANGES WHICH ARE SPECIFIC TO DIR. 2004/17 3rd CHANGE: A NEW DEFINITION OF «SPECIAL OR EXCLUSIVE RIGHTS» DIR. 93/38 : « SPECIAL OR EXCLUSIVE RIGHTS » = RIGHTS DERIVING FROM AUTHORIZATIONS GRANTED BY A COMPETENT AUTHORITY OF THE MEMBER STATE CONCERNED BY LAW, REGULTION OR ADMINISTRATIVE ACTION, HAVING AS THEIR RESULT THE RESERVATION FOR ONE OR MORE ENTITIES OF THE EXPLOITATION OF AN ACTIVITY DEFINED IN PARAGRAPH 2. DIR. 2004/17 : « SPECIAL OR EXCLUSIVE RIGHTS » MEAN RIGHTS GRANTED BY A COMPETENT AUTHORITY OF A MEMBER STATE BY WAY OF ANY LEGISLATIVE, REGULATORY OR ADMINISTRATIVE PROVISION THE EFFECT OF WHICH IS TO LIMIT THE EXERCISE OF ACTIVITIES DEFINED IN ART. 3 TO 7 TO ONE OR MORE ENTITIES, AND WHICH SUBSTANTIALLY AFFECT THE ABILITY OF OTHER ENTITIES TO CARRY OUT SUCH ACTIVITY.

  32. CHANGES WHICH ARE SPECIFIC TO DIR. 2004/17 4th CHANGE : POSSIBILITY TO EXCLUDE AN ACTIVITY MENTIONED IN ART. 3 TO 7 IF IT IS DIRECTLY EXPOSED TO COMPETITION ART. 2-4 (TRANSPORT SECTOR), 3 (OIL, COAL, SOLID FUEL) AND 8-1 (TELECOMMUNICATION SECTOR) OF DIR. 93/38 : SECTORS EXCLUDED IF ACTIVITY SUBMITTED TO COMPETITION ART. 3 : SITUATION CHECKED BY THE EUROPEAN COMMISSION, WHICH DECIDES WHETHER THE DIRECTIVE APPLIES OR NOT. ART. 8 : CJEC’s RULING « IT IS UP TO THE OPERATOR TO DECIDE » PRACTICAL RESULT : DIFFICULTY FOR THE OPERATORS

  33. CHANGES WHICH ARE SPECIFIC TO DIR. 2004/17 ART. 30-1 OF DIR. 2004/17 : EXCLUSION OF CONTRACTS INTENDED TO ENABLE AN ACTIVITY MENTIONED IN ART. 3 TO 7 IF, IN THE MEMBER STATE IN WHICH IT IS PERFORMED, THE ACTIVITY IS DIRECTLY EXPOSED TO COMPETITION ON MARKETS TO WHICH ACCESS IS NOT RESTRICTED ART. 30-4 : CONTRACTS EXCLUDED IF THE COMMISSION HAS ADOPTED A DECISION ESTABLISHING THE APPLICABILITY OF 30-1 WITHIN A 3-MONTH PERIOD (EXCEPTIONALLY 6 MONTHS) OR IF IT HAS ADOPTED NO DECISION WITHIN THIS PERIOD

  34. CHANGES WHICH ARE SPECIFIC TO DIR. 2004/17 THE PROCEDURE CAN BE INITIATED BY THE MEMBER STATE CONCERNED, BY CONTRACTING ENTITIES IF THE NATIONAL LEGISLATION PROVIDES FOR IT, OR BY THE COMMISSION. IN THESE CASES, THE MEMBER STATE IS INFORMED AND INVITED TO PROVIDE THE COMMISSION WITH ANY USEFUL INFORMATION (TEXTS OF LAWS, OPINION OF ANY INDEPENDANT AUTHORITY…) DECISION 2005/15/EC ON THE DETAILED RULES FOR THE APPLICATION OF THE PROCEDURE PROVIDED FOR IN ARTICLE 30 OF DIRECTIVE 2004/17 PROVIDES THE LIST OF PIECES OF INFORMATION TO BE PROVIDED TO THE COMMISSION.

  35. CHANGES WHICH ARE SPECIFIC TO DIR. 2004/17 CRITERIA USED TO DECIDE WHETHER AN ACTIVITY IS DIRECTLY EXPOSED TO COMPETITION CHARACTERISTICS OF THE GOODS OR SERVICES, EXISTENCE OF ALTERNATIVE GOODS OR SERVICES, PRICES, ACTUAL OR POTENTIAL PRESENCE OF MORE THAN ONE SUPPLIER OF THE GOODS OR SERVICES FREE ACCESS DEEMED NOT TO BE RESTRICTED IF THE MEMBER STATE HAS IMPLEMENTED THE RELEVANT EU LEGISLATIOIN (ANNEX 11 OF DIR. 2004/17). IF NOT, IT HAS TO BE DEMONSTRATED (SEE DECISION 2005/15/EC OF THE COMMISSION)